Newby v. Taco Bell of America Inc et al

Filing 8

OPINION AND ORDER: Plaintiff is ORDERED to file a Second Amended Complaint on or before 12/29/2011, properly alleging the citizenship of Plaintiff Virgil Newby. Signed by Magistrate Judge Roger B Cosbey on 12/15/2011. (kjm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VIRGIL NEWBY, Individually and as Special
Administrator of the ESTATE OF ALICIA
NEWBY,

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Plaintiff,
v.
TACO BELL OF AMERICA, INC. and
YUM! BRANDS, INC.,
Defendants.

CAUSE NO. 1:11-CV-411

OPINION AND ORDER
This case was filed in this Court on December 7, 2011, based on diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a). (Docket # 1.) In its December 14, 2011, order, the Court
ordered the Plaintiff to file an Amended Complaint properly alleging the citizenship of the
Defendants (Docket # 6), which the Plaintiff promptly did (Docket # 7). However, the Court
overlooked the fact that the original Complaint, and now the Amended Complaint, also
improperly alleged the citizenship of the Plaintiff, Virgil Newby. The Amended Complaint
alleges that “Plaintiff, Virgil Newby, is a resident of Peru, Indiana.” (Am. Compl. ¶ 1.)
The Amended Complaint, however, is inadequate because the “residency” of each party
is meaningless for purposes of diversity jurisdiction, as “citizenship is what matters.”1 Guar.
Nat’l Title Co. v. J.E.G. Assocs., 101 F.3d 57, 58-59 (7th Cir. 1996) (explaining that statements

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For purposes of determining diversity jurisdiction, each party’s citizenship must be articulated as of “the
time of the filing of the complaint,” rather than the date the claims are alleged to have arisen or some other time
material to the lawsuit. Multi-M Int’l, Inc. v. Paige Med. Supply Co., 142 F.R.D. 150, 152 (N.D. Ill. 1992).

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concerning a party’s “residency” are not proper allegations of citizenship as required by 28
U.S.C. § 1332); see 28 U.S.C. § 1332. “It is well-settled that when the parties allege residence
but not citizenship, the court must dismiss the suit.” Held v. Held, 137 F.3d 998, 1000 (7th Cir.
1998) (internal quotation marks and citation omitted); see generally Smoot v. Mazda Motors of
Am., Inc., 469 F.3d 675, 677-78 (7th Cir. 2006). Therefore, as citizenship does not necessarily
equate with residence, Dahlstrom v. Simon, No. 00 C 5189, 2000 WL 1231391, at *1 (N.D. Ill.
Aug. 28, 2000), alleging that Plaintiff Virgil Newby is a resident of Peru, Indiana, fails to
establish his citizenship.
Accordingly, the Court must be advised of Plaintiff Virgil Newby’s citizenship, not
residence. “For natural persons, state citizenship is determined by one’s domicile.” Dausch v.
Rykse, 9 F.3d 1244, 1245 (7th Cir. 1993); see also Am.’s Best Inns, Inc. v. Best Inns of Abilene,
L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) (“In federal law citizenship means domicile, not
residence.”).
Therefore, Plaintiff is ORDERED to file a Second Amended Complaint on or before
December 29, 2011, properly alleging the citizenship of Plaintiff Virgil Newby.
SO ORDERED.
Enter for this 15th day of December, 2011.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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